Righthaven's Big Appeal Kicks Off With About As Much Success As Its District Court Cases

from the not-looking-good dept

These days, with the likes of Prenda Law and Charles Carreon, it feels like we've all forgotten last year's favorite legal punching bag: Righthaven. While its comical failures had resulted in at least one of its major appeals going away, the company somehow convinced another lawyer to represent it, and he actually showed up in the 9th Circuit appeals court yesterday to try to revive Righthaven's chances in two of its key cases: the DiBiase case and the Hoehn case.

Syverson tried to argue that the deal with Stevens Media, the parent company of the Las Vegas Review-Journal, involved an actual copyright transfer. "Righthaven and Stevens Media were well aware of the Silvers case and attempted to comply," said Syverson early on in his argument.

"It looks like form over substance," said one of the judges on the three-judge panel. "It seems like an attempt that's too cute by half to get around Silvers."

Another judge noted that Stevens could take back any of the rights at any time, meaning any "transfer" of copyright wasn't very meaningful. Righthaven couldn't really have licensed the copyrights or published the articles it had the rights to, since Stevens Media could have reclaimed those rights at any time.

If you don't recall, the key issue was that Righthaven never really had any control over the copyright in the cases. They involved content from the Las Vegas Review-Journal, but the agreement between Righthaven and Stevens Media (the owner of the LVRJ) made it clear that the LVRJ had full say in things and could take back the copyright at any time. In effect, the only thing really transferred to Righthaven was the "bare right to sue" and you can't do that, because such a "right" is not a separate right of copyright. You can only transfer one of the actual listed copyright rights (e.g., the right to reproduce, distribute or perform) and with that comes the ability to sue. The Silvers case referred to above is Silvers v. Sony Pictures which makes that point clear.

That said, as Joe Mullin reports in the link above, the appeals court justices seemed somewhat less bought into the idea, raised in the Hoehn case, that the use of the LVRJ material was fair use. That's unfortunate. It was a good ruling that found that even when you repost a full article it can be fair use. The argument was mainly that when Wayne Hoehn posted it, it was not for the same purpose or in any way competitive with Righthaven (who merely wanted it to sue). But the court wasn't as receptive to that argument:

First of all, Hoehn's use wasn't "transformative," noted one judge on the panel. "How is the nature and character of the article changed at all, by posting it to a website?" he asked. "Have you ever seen a newspaper that didn't have space for letters to the editor, or a space for comments?"

Just the fact that he meant to inspire debate doesn't justify copying the full work, said another judge. "What if I copied Justice Sotomayor's book into a blog post and invited people to comment on it?" he asked.

Hopefully the panel reconsiders before issuing its ruling. The way Hoehn used it was not the same way that Righthaven or the LVRJ were using it -- and it's that aspect that was transformative. Still, it won't surprise me if that argument fails, but it will be unfortunate. Either way, if Righthaven actually "wins" on that point, it won't much matter for the company, considering its likely to lose on whether or not it even had standing to sue in the first place. However, for those of us concerned about fair use, and how widely it can be applied, this second issue may be a lot more important. Having a strong fair use ruling on the books concerning the reposting of full content (in a particular context) would be a good thing to have, though it sounds unlikely.

Re:

What's your opinion on this, AJ?

Why won't you debate me?!

LOL! It doesn't look good for Righthaven on the standing issue. It will be interesting to see how the judges deal with the assignment that on its face transferred legal ownership of the copyright to Righthaven and conformed with the letter of Silvers. If there's no standing, the fair use ruling will be vacated. That's an easy one. It was hilarious listening to Randazza try to sell that wholesale copying as being transformative. I would be too embarrassed to make that argument since it's pretty silly.

Percent and Total Volume posted should affect fair use consideration

The court wrote:

> Just the fact that he meant to inspire debate doesn't justify copying
> the full work, said another judge. "What if I copied Justice Sotomayor's
> book into a blog post and invited people to comment on it?" he asked.

The book is a much larger work than the article that was posted.

It still can be fair use to post all of something short.

The larger the total volume of work posted, the higher the barrier there should be to it being fair use.

For instance posting 100% of a one paragraph copyright work could easily be fair use, even though it's 100%.

Posting 10% of Justice Sotomayor's book is very unlikely to be fair use, even though it's only a fraction of the work.

Re: Percent and Total Volume posted should affect fair use consideration

I should have added that this is a mirror of how another aspect of fair use works.

Posting just one sentence of a large book could be infringement and NOT be fair use if that sentence is the heart of the work, maybe a spoiler that reveals that the falcon was really just a raven all along, and affects the market value of the work.